On Monday GamePolitics reported on disbarred Miami attorney Jack Thompson's vague threat to "proceed" against Utah Attorney General Mark Shurtleff (R) if the popular, third-term A.G. didn't immediately take action against major retailers like Best Buy, Target and Wal-mart for alleged sales of Grand Theft Auto IV to minors.
On that score, we should note that no law enforcement official anywhere in the United States has done what Thompson is suggesting Shurtleff do.
The backstory to Thompson's ire seems to stem from Gov. Jon Huntsman's veto last week of HB 353, the video game/movie bill conceived by Thompson. Following the veto, Shurtleff told the Salt Lake Tribune that he had been troubled by concerns about the legality of the bill. Going further back in history, in 2007 Thompson called for Shurtleff's impeachment after the A.G. gave a legal opinion that a measure proposed by Thompson was unconstitutional.
Given the nature of the public attacks on Shurtleff by Thompson (which include referring to the A.G. as "dead meat"), GamePolitics interviewed Attorney General Shurtleff yesterday on the HB 353 fallout:
GP: You’ve come under severe criticism from Jack Thompson in recent days in regard to the video game bill vetoed by Gov. Huntsman last week. Can you comment?
Shurtleff: Well, I just consider the source. I don’t take what Jack Thompson says – give it much credence. This latest demand that I prosecute certain crimes shows me that he knows about as much about criminal law as he does about constitutional law...
GP: Thompson, as you probably know, was given a lifetime disbarment last year by the Florida Supreme Court.
Shurtleff: Right. Yes.
GP: Given that fact, does it seem odd that he was invited to Utah and apparently met with the Lt. Governor and other political forces there to help craft the video game legislation?
Shurtleff: Yes. Absolutely. I do think that’s odd. I also think it’s odd that he received some kind of award from [the] 4th of July celebration in Provo last year. (click 'Read more' below for the rest...)
GP: Thompson apparently believes that you should be stopping sales of games like Grand Theft Auto to minors in Utah. Is there any indication that such sales are taking place and is any intervention legally possible?
Shurtleff: First of all, we have no direct evidence that it is happening. Does it happen? Probably. But, last year we had my investigators with my Internet Crimes Against Children Task Force go through the entire game Grand Theft Auto IV because we’d heard that a lot of people had concerns about pornographic references and so forth and whether it could meet the definition of material harmful to a minor. After they reviewed it with staff prosecutors they determined it wasn’t prosecutable.
GP: In recent years, you have had a friendly relationship with the video game industry. You did a public service announcement for the ESRB in 2006 and, in 2008, the ESA donated money to your campaign.
Shurtleff: My attitude is there’s a great rating system. I feel very strongly that the ESRB rating system works. It’s something that every parent ought to know about. And let me make it very clear that, while our officers and prosecutors didn’t think we could prosecute someone for selling Grand theft Auto IV, I certainly would strongly recommend against any parent letting their kids play the game. I don’t let my kids play it. Parents ought to be parents when it comes to games like that.
So, my attitude is rather than waste money on bills that are going to be unconstitutional like what Jack Thompson was pushing a couple of years ago [in Utah] in criminalizing the sale of these types of mature-rated video games, my attitude was, why do that if we’re going to lose? [Thompson's earlier bill] lost everywhere that it was proposed and we’re going to end up paying significant attorneys’ fees [to the video game industry]. Let’s put that money into educational programs. Let’s teach parents on how to use the rating system. Let’s have parents be parents and use the system. It works. That’s been my attitude from the beginning and that’s why I did the PSA, to better inform and educate parents about the system itself and how to use it and to make the decision as parents on what’s appropriate for your kids to be playing.
This year’s bill had concerns. They weren’t as significant as they were two years ago, or three years ago, whenever it was because there hadn’t been all the court decisions on it. It’s obviously a brand-new effort to try and do something [about violent games]. We did have concerns. Ultimately, we told the sponsor [Rep. Mike Morley] that there’s probably some arguments we can make to defend it if you want to pass it. We’re going to be sued. We’ll defend it. But if we lose we’re going to pay attorneys’ fees.
They made the policy decision, apparently, in the legislature to go ahead. The Governor made a different policy decision. Let’s make it very clear that I did not - Jack’s blaming me for everything - (chuckles) as far as this bill went, but my understanding was, Gov. Huntsman vetoed the bill not necessarily for legal concerns but he just had a policy decision that [the bill] actually put Utah children at more risk at having access to these games because the result would be that nobody would say that they weren’t selling to kids or weren’t going to market to them. So the Governor made his own independent policy decision on this. I think it was irrespective of some of the legal concerns.
GP: On the other hand, I recall that you were among those calling for a boycott of the cops-and-robber game 25 to Life in late 2005 and early 2006.
Shurtleff: I did, primarily because I was contacted by a law enforcement community and in particular the children of a police chief who was murdered – shot and killed in a hostage-type situation where the hostage was being used as a human shield similar to what was in that game. And so they were very concerned about it because of the fact that cops had been killed, including their loved ones.
So I felt strongly: You know what, company, take some responsibility and don’t issue this game. What was more important though, is that because of my association with ESRB and ESA – ESA in this particular case - I was able to, on a weekend, contact the new owner of, I think it was…
Shurtleff: Eidos? Yeah. Through my contacts at ESA they immediately got me in touch with [the CEO]. I think he was at a soccer match or something like that. But he took my call, listened to my concerns, ultimately said, "Well, okay, look, you know what, we’re going to hold off on issuing it so that we can address those concerns."
I think it was set to come out sometime before Christmas that year, if I remember correctly. They held off until sometime later to do it. Ultimately, I’m a free market guy and so I would like a company to take some responsibility. If they choose not to and go ahead, then I wanted to see what I could do to work with the company to perhaps limit the sales.
The biggest concern is once you start protesting something and you don’t want it to be sold and you don’t want people to buy it, more people will buy it if you raise a big stink about it. So, I felt it was really good to be able to talk with them. They understood our concerns. I asked the ESRB to take it back and take another look at [re-rating] it. I guess they decided not to do that. Again, it’s just asking companies to be responsible and the rating system to work and be responsible and ultimately to be accurate in how you are rating a game and hopefully educate others as to what’s in it. And ultimately I think that was a pretty lousy game from what I understand. Didn’t really have huge sales.
GP: While Thompson has been extremely harsh in his criticism of you, Rep. Mike Morley who sponsored HB 353 and Utah Eagle Forum head Gayle Ruzicka, who backed the bill, have been keeping a low profile in that regard. Have you heard from them?
Shurtleff: No, I haven’t. Again, because we tried to work with them. When it’s the legislature, we’re not their attorneys, they have their own in-house attorneys. But we end up having to defend a bill once it passes, so often we try to get involved to give [the legislature] our concerns. We gave them our concerns with [HB 353]. We did raise issues of First Amendment, we raised concerns of Dormant Commerce Clause [of the U.S. Constitution] and some of these things that were being raised by industry out there and discussed them with [the legislators], made some recommendations.
Ultimately, at the end of the day with what they had to go, they said, "Well, is it defensible?" And we ultimately said, "Yeah. We can make our argument." There’s no case law on this like there was before [with Thompson's 2007 bill] that we knew absolutely you’re going to lose the case, we couldn’t tell them that. So then it becomes just a policy decision if the legislature wants to go forward on something like that, spend the money defending it. And it’s our job to defend it, so that’s how [HB 353] ended up getting passed. We said, "It's not our bill. I'm not going to go out there and support it, but I won’t oppose it either. We're just neutral on the bill."
GP: Anything else you want to add?
Shurtleff: No. (chuckles) I almost hate to respond because it just gives Jack Thompson the limelight that he so craves, apparently… He once accused me of calling him once when I was drunk, which I don’t drink - at all. He’s just that kind of guy you just would better off ignore... But I’m not concerned about his threats of impeachments or lawsuits or anything else. I just won reelection by 70% of the vote and he himself is facing his own troubles out there [in Florida]. So, whatever, bring it on, Jack. I’m really not going to give it much thought, frankly.